The rights of IPR holders against users of hosting sites

The development of the Internet and so-called “community” sites has facilitated access to knowledge, culture, etc. and the dissemination of works of the mind to as many people as possible. Nevertheless, abuses are to be deplored, in fact, practices have developed which consist in putting online works of authors without the express and prior consent of the latter.

In France, this practice is considered as an infringement, in application of article L335-2 of the Code of intellectual property: “ Any edition of writings, musical composition, drawing, painting or any other production, printed or engraved in whole or in part, in defiance of the laws and regulations relating to the property of the authors, is an infringement and any infringement is an offense . “. In the same way, Swiss law recognizes, for example, “ works using language, whether literary, scientific or other ” or “ photographic, cinematographic and other works visual or audiovisual ”as creations of the mind which are protected by copyright, in accordance with the federal law on copyright and neighboring rights of October 9, 1992. This implies, in application of article 10 of the law cited above, that “ The author has the exclusive right to decide if, when and in what way his work will be used ”. So anyone who discloses a work without the consent of its author on an Internet platform could be sanctioned for the violation of copyright.

How should we interpret the term “address”?

European law has also taken up the issue of the protection of intellectual property rights by adopting the directive 2004/48 relating to the respect of intellectual property rights . This harmonises the law of the Member States of the Union in the fight against counterfeiting. It aims to enable holders of intellectual property rights who have their rights violated to take more effective legal action. This involves in particular a right of information, provided for in Article 8 of the Directive which states that “ Member States shall ensure that, in the context of an action relating to an infringement of a property right intellectual property and in response to a justified and proportionate request from the applicant, the competent judicial authorities may order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by the infringer […] ”. The information that may be transmitted includes in particular “ names and addresses ” of individuals who participated in the infringement of intellectual property rights. Yet a question arises: how should we interpret the term “address”? Should it be considered in the strict sense as the only address of the domicile or place of residence of the offender or should it be viewed in the broad sense, as also including the email address, the IP address and the telephone number? phone of the individual involved?

In a judgment of July 9, 2020 the Court of Justice of the European Union has clarified this notion of“ addresses ”which can be found in directive 2004/48 . Article 8 of this regulation provides for a right to information which implies that the competent judicial authorities can order the provision of certain information in the event of an infringement of an intellectual property right, and in particular the address of persons in question.

This case pitted a film production company against YouTube and Google. The YouTube platform allows users to post, watch and share videos. Some of the users have released films belonging to the film production company without authorization, which have been viewed tens of thousands of times. The production company has taken legal action in Germany in order to force YouTube and Google, YouTube’s parent company, to provide it with a set of information.ions relating to users who have distributed the works in question. This request was based on Article 8 of Directive 2004/48 on respect for intellectual property rights which allows the competent judicial authorities of a Member State to order the disclosure of the names and addresses of persons who infringe a intellectual property right, but the directive does not define the meaning in which the concept of “addresses” is to be understood. In this judgment the following question was therefore posed: “ The addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as of the recipient wholesalers and of the retailers listed in Article 8 , paragraph 2 (a) of Directive [2004/48], […] also include the e-mail addresses of the users of the services and / or the telephone numbers of the users of the services and / or the IP addresses used by the users of the services to upload the infringing files, with the exact time of the upload? ”

The applicant company considers that this concept must be interpreted in the broad sense and that the address corresponds to all the information concerning the identity of the person which was used at the time of the dissemination of the work on the platform but also at the time of the last access to the Google / Youtube account, i.e. email address, telephone number and IP address.

“address” refers to the postal address, that is to say the place of domicile or residence of a specific person and not the email address, phone number or IP address

The CJEU recalls that the provision of Article 8 of Directive 2004/48 does not include references to the rights of the Member States, so this concept must be interpreted independently and uniformly in all the Member States of the Union. . But Directive 2004/48 does not define what an “address” is, therefore it must be interpreted in accordance with how it is used in everyday language. But in this interpretation the “address” refers to the postal address, that is to say the place of domicile or residence of a specific person and not the email address, telephone number or IP address. But to grant the concept of “address” provided for in the directive on the respect for intellectual property rights the definition given to it in everyday language would not amount to depriving the provision of its essence and to disregard the objective of directive 2004/48 which is the protection of intellectual property rights?

The European judges then tried to interpret the address in the light of the preparatory work that led to the adoption of Directive 2004/48. There is no evidence from this study to suggest that the term “address” should be understood as referring not only to the postal address, but also to the e-mail address, telephone number or IP address of the persons concerned.

Finally, it emerges from a study of all acts of Union law relating to the e-mail address or the IP address that none of them uses the term “address”, without further clarification, for designate the phone number, IP address or email address.

In view of all these elements and the objective of Directive 2004/48 to establish a fair balance between the interests of holders of the protection of their intellectual property rights and the protection of personal data of user, the European judges consider that “ the concept of“ addresses ”[…] does not cover, as regards a user who has uploaded files infringing an intellectual property right, his e-mail address, his number phone number as well as the IP address used to upload these files or the IP address used when it last accessed the user account . ”

The right to information of the holders and the right to the protection of the personal data of the users

This interpretation is, according to the Court, consistent with the purpose pursued by the provision of Directive 2004/48 on the right to information. Indeed, considering the minimum harmonization concerning respect for intellectual property rights in general, this harmonization is limited, according to the said provision, to well-defined elements of information.

DFurthermore, this provision aims to reconcile respect for various rights, in particular the right to information of holders and the right to protection of users’ personal data.

In these circumstances, the Court concluded that the concept of “addresses” in Directive 2004/48 does not cover the email address, telephone number or IP address of the user who uploaded the files. It therefore refused to grant the German producer’s request for extensive information on the person behind the unauthorized release of the cinematographic works.

The European judges adopted a restrictive interpretation of the text with regard to German law. The problem is that this complicates the fight against the unauthorized distribution of copyrighted material against internet giants such as Youtube.

Our team remains at your disposal to protect your intellectual property rights against any infringement and in particular in the event of publication of your works on the site of a host.

However, the directive leaves room for maneuver to member states: they have the possibility of granting holders of intellectual property rights the right to receive more extensive information. But this possibility is subject to respect for a balance between the fundamental rights involved.

Moreover, in practice, we see that the responsibility of technical intermediaries has always been difficult to engage for holders of intellectual property rights. For example, in France, French legislation is very favorable to technical hosts. The law on confidence in the digital economy of June 21, 2004 created two distinct liability regimes for the publication of content on the internet: that of the publisher and that of the host. The publisher develops the content and is responsible for the editorial line and the host provides a storage service, he is considered to have a passive behavior and cannot decide on the content. Considering that the content publisher must control the content disseminated on its site, any illegal content disseminated on its site may entail liability. On the contrary, the content host can only be held liable in certain very specific cases: if he has been duly informed of the presence of illegal content and has not taken measures to render it access impossible within a reasonable time. These are rules resulting from European law and in particular put forward by a judgment of 23 March 2010 of the CJEU by which it considered that to engage the responsibility of the host, it must play an active role in the knowledge or control of the stored data.

In Switzerland, the Federal Court of Geneva also seems to have adopted a less restrictive view than the member states of the European Union with regard to the liability of the internet host which provides storage services. He considered that it was possible to bring an infringement action against the host of a blog even if the latter knew nothing about illegal content. Therefore, the Swiss jurisdiction does not require active behavior on the part of the host for its liability to be engaged. In their reasons, the supreme judges were based on article 28, paragraph 1, of the Civil Code according to which “ Whoever suffers an unlawful attack on his personality may take legal action for his protection against any person who participates in it. . “. It is then up to the legislator to repair the consequences that the application of current law could have for the Internet and for blog hosts.

However, by admitting passive legitimation, the court did not set any limits, which can lead to abuses and excessive engagement of hosts. Therefore, in applying this principle, courts should take into account the principle of proportionality.

Eternoscorp remains at your disposal to tell you what law is applicable to you in the event of violation of your rights by the user of a hosting site.